People v. Calhoun

• Decision Date: 31 March 1977
• Citation: 90 Misc.2d 88,393 N.Y.S.2d 529
• Parties: The PEOPLE of the State of New York v. James CALHOUN.
• Court: New York Supreme Court

Page 529

393 N.Y.S.2d 529

90 Misc.2d 88

The PEOPLE of the State of New York v. James CALHOUN.

Supreme Court, Kings County.

March 31, 1977.

Jon L. Besunder, Asst. Dist. Atty., Brooklyn, for plaintiff.

William Gallagher, Legal Aid Society by Burton Kanter, Brooklyn, for defendant.

M. MICHAEL POTOKER, Justice.

Defendant seeks to preclude testimonial evidence of observations made by two fire marshals and photographs taken at the time as to the condition of his apartment following a fire on the ground that said evidence was obtained as a direct result of an unconstitutional search.

The instant indictment charging defendant with committing the crimes of arson in the second degree, reckless endangerment in the first degree and assault in the third degree stems from a fire that occurred in a building located at 7915 Fifth Avenue, Brooklyn early in the morning of August 29, 1975. Defendant was a tenant in the building and was in occupation of his apartment when the fire occurred although an order of dispossess issued by the Civil Court remained unexecuted at the time. He was arrested about eight hours after the fire was brought under control.

Defendant pleads that his right to privacy in his property is protected by the Fourth Amendment prohibition against unreasonable searches and seizures (Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576). He also directs the court's attention to People v. Tyler, 399 Mich. 564, 250 N.W.2d 467 (decided by the Supreme Court of the State of Michigan on February 14, 1977)), which held that police and fire officials who enter a recently-burned building to gather evidence of arson come within the Fourth Amendment's warrant requirement regardless of whether the entry is in the nature of a criminal investigation or has the administrative purpose of determining the cause and source of the fire. The court did, however, acknowledge that a lesser standard of probable cause applies to an administrative entry than to an entry for the purpose of a criminal investigation.

The testimony of Fire Marshal Thomas Breheny, the People's only witness at the hearing, is summarized as follows: He arrived at 7915 5th Avenue between 12:30 and 1:00 p.m. to investigate a suspicious fire which had occurred there earlier that day at or about 4:00 a.m. The fire was extinguished at 6:30 a.m. and brought under control about 8:00 a.m. The purpose of his assignment was to determine the origin of the fire since the cause was unknown at the time of his arrival. He was accompanied by another fire marshal during his inspection. He entered defendant's apartment, which he found open since the door had apparently been destroyed in the fire. He did not conduct chemical or other tests. From his observati he found that the fire originated in two places in said apartment and on the steps leading up to the second floor landing.

His entry was predicated under the Administrative Code of the City of New York ( § 488(2)--1.0), which commands fire marshals to investigate, examine and inquire into the following matters: the origin, detail and management of fires in the city, particularly of supposed cases of arson, incendiarism, or fires due to criminal recklessness.

In Tyler, fire officials returned to the scene of the fire on several occasions, twice within hours after the fire was extinguished and thereafter from four days to three weeks later. Their observations, photographs taken and physical evidence seized were admitted in evidence at the trial over objection, a ruling reversed by the State's Supreme Court (399 Mich. 564, 250 N.W.2d 467). The admissibility of observations and the discovery and seizure of plastic containers filled with a flammable liquid before the firefighters left was not challenged by defendant, conceding that evidence acquired while firefighters are lawfully on the premises putting out the fire is admissible under the plain-view doctrine.

If for no other reason the case at bar is clearly distinguishable from Tyler. In Tyler, the court stated: 'Although the premises may be uninhabitable, personal possessions habitability becomes tantamount to actual becomes tantamount to actual abandonment, there may still be a justifiable expectation of privacy.'

In the case before the court, the second and third floors of the building, including defendant's apartment, were destroyed by the fire. The building was no longer habitable. All the windows of the second and third floors and the defendant's apartment including the door were destroyed.

The defendant no longer had a 'sufficient objectively reasonable expectation of privacy in the burned premises.' (State v. Felger (1974) 19 Or.App. 39, 526 P.2d 611; see also Castle v. State, 305 So.2d 794 (Fla.) and Steigler v. Anderson, 496 F.2d 793 (Del. 1974).)

The search of the burned-out apartment was not therefore interdicted by the Fourth Amendment (Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576) because a reasonable expectancy of privacy no longer existed. Uninhabitability did become tantamount to actual abandonment.

Nor does this court subscribe to the conclusion reached by the Michigan Supreme Court in Tyler, which read a warrant requirement into a state statute that authorizes fire officials with the responsibility of investigating fires 'to enter, without restraint or liability for trespass any building or premises and inspect the same and the contents and occupancies thereof.'

In Camara v. Municipal Court, 387 U.S. 523, 529, 87 S.Ct. 1727, 18 L.Ed.2d 930 and See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943, the cases on...